Fixing Criminal Law Errors Retroactively

When the U.S. Supreme Court makes a new rule of law favoring criminal defendants, it applies to all cases not yet final on direct appeal. If the rule is one of substance rather than procedure, it applies to cases final on appeal but pending on habeas corpus as well.

How about when a state supreme court corrects a misinterpretation of the law by lower courts, an error that had favored defendants? Does the defendant have a vested right to the case law as it existed at the time of the crime?

The Ex Post Facto Clause prohibits legislatures from enlarging the definitions of crimes or eliminating defenses retroactively. For case law, the picture is more muddled. The case of Bouie v. City of Columbia, during the civil rights struggle, involved a sit-in demonstration that was not a criminal offense at the time of the demonstration, but the state courts expanded the definition of the relevant offense to include it. The Supreme Court said that violates due process of law. More recently, in Rogers v. Tennessee, the high court allowed retroactive application of a decision dumping the old rule that a crime is not murder unless the victim dies within a year and a day.

Metrich v. Lancaster, argued today in the high court, involves the Michigan law of diminished capacity.

That is the notion that a mental condition less than insanity can reduce
a homicide (nearly all dim. cap. cases are homicides) to a lesser
degree by negating the defendant's capacity to form such mental states
as "intent," "malice," or "premeditation." The defense is virtually
always garbage because these are very rudimentary mental states, and the
capacity to commit the act nearly always demonstrates the capacity to do it with malice aforethought.

Yet some gullible jurors, too easily swayed by mental health experts, have accepted these defenses, including in some high profile cases. The most notorious was the trial of Dan White for the murder of San Francisco Mayor George Moscone and Supervisor Harvey Milk. The manslaughter verdict produced a riot and a harmonic convergence of political forces that swept diminished capacity in its most obnoxious form from the law of California.

Back to Michigan. A 1973 case recognized a diminished capacity defense. A 1975 codification of mental defense law made no mention of it. Some court of appeals cases subsequently assumed, but did not decide, that the defense survived the codification. In 2001, the Michigan Supreme Court said no. Michigan criminal law is statutory, and neither crimes nor defenses exist unless the code says so.

Can this decision apply to a pre-2001 homicide?

JUSTICE GINSBURG: But this -- the case is -- is very different from Bouie which you -- which you rely on. In -- in Bouie, it was the question of a rule that is governing conduct. People come on to premises; they have no reason to think that they are committing an offense if they don't leave when somebody asks them to if they came onto the premise lawfully. So what the Court said in Bouie was that this is a regulation of primary conduct, and at the time these people acted, they had no reason to believe that what they did was unlawful. That's quite a different --

MR. MOGILL: Yeah, I agree with that, Justice Ginsburg, except that at footnote 5 in Bouie, this Court explicitly rejected the notion that subjective reliance by the accused is -- is even an aspect of the test for determining-

JUSTICE GINSBURG: It -- it isn't subjective reliance, it's -- it's what was the law.

I think Justice Ginsburg is on the right track. Language in earlier cases saying that no showing of reliance is required should be understood to mean that the individual defendant does not have to show that he looked up the law and decided to commit the act in reliance on cases saying it was not a crime. Reliance should still count in a more global sense. If the defense erroneously asserted by lower courts was a defense of a nature that no one could have relied on, the correction of the error by the state supreme court should apply to all pending cases. Such application is not so unfair as to violate due process of law. Indeed, it is not unfair at all.

Mental defenses are a perfect example. A person with the mental capacity to rely on a mental defense necessarily does not qualify for it and vice versa. In the case before the Court, Lancaster knew that killing his girlfriend was a crime. He knew the criminal law better than most people, being a former police officer. The law, correctly understood, did not provide a diminished capacity defense at the time of the crime, and there is no good reason to make it available.